Democrats Pressed 36-Year-Old Circuit Pick on 'Life Experience'

"Virtually all of my partners at Williams & Connolly LLP, who are a politically and demographically diverse group, have submitted a letter supporting my nomination," Allison Jones Rushing said in written responses to Senate Democrats.

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Allison Jones Rushing testified in October before the Senate Judiciary Committee during her confirmation hearing to be a judge on the U.S. Court of Appeals for the Fourth Circuit. (Photo: Diego M. Radzinschi / ALM)

Williams & Connolly partner Allison Jones Rushing, in line to become one of the youngest federal appellate judges in the country, defended her “life experience” and her work for an anti-LGBT organization in response to written questions from Senate Judiciary Democratic members.

Committee Democrats did not attend Rushing’s Oct. 17 confirmation hearing on her nomination to the U.S. Court of Appeals for the Fourth Circuit. The hearing was scheduled during the Senate’s recess for midterm elections, lasted less than hour and was held with only two committee members present, both Republicans.

Democratic members had objected—and continued to object Thursday—to the recess hearings. Sen. Dianne Feinstein of California, the ranking Democrat, had urged Republican leaders to reconvene the confirmation hearing for Rushing and several other Trump nominees. Democrats did send Rushing and other nominees a series of written questions.

In their questions to Rushing, several Democratic members noted that an American Bar Association position says a nominee to the federal bench should have a minimum of 12 years’ experience in the practice of law. Rushing graduated from Duke Law School in 2007 and clerked for Justice Clarence Thomas and Justice Neil Gorsuch, when he sat on the Tenth Circuit.

The questions to Rushing, 36, covered the usual areas of precedent and stare decisis, abortion, religious discrimination and more, but a clear concern was Rushing’s relative inexperience in the practice of law and her connection to Alliance Defending Freedom.

“You graduated from law school 11 years ago,” wrote Sen. Mazie Hirono of Hawaii. “You have only practiced law for eight of those years. What experiences, other than having handled appeals, over your eight years as a practicing lawyer do you have that qualify you to serve in a lifetime position as a federal circuit court judge?”

Rushing emphasized the diverse subjects of her appellate practice at Williams & Connolly, where she has worked since 2011 and been a partner since last year. She also noted a “substantial majority” on an ABA committee ranked her “qualified.”

“Virtually all of my partners at Williams & Connolly LLP, who are a politically and demographically diverse group, have submitted a letter supporting my nomination. Attorneys who clerked with me at the Supreme Court, from every active Justice’s chambers, have submitted a letter of support,” Rushing said in her written responses.

Rushing said that “preparation for the federal appellate bench is not merely a matter of years but of accruing the relevant experience. I have extensive experience relevant to the work of a federal appellate judge.” She told senators she has filed more than 45 briefs in the Supreme Court and has argued in federal and state appeals courts.

Sen. Kamala Harris, D-California, noted that research by the Brookings Institution, a liberal think tank, found that, for the last 30 years, the average age of circuit court judges upon appointment has been 50. She asked Rushing why she thought those judges were appointed at that age. Rushing responded: “I have not researched the accuracy of, or reasons for, this statistic.”

The questions from Democrats were not out of the blue. At Rushing’s confirmation hearing last month, Sen. John Kennedy, R-Louisiana, asked the nominee why she thought she was qualified for the circuit court having only graduated from law school 11 years ago.

“I’m not trying to be rude. I can see your resume. You’re a rock star,” Kennedy, presiding over Wednesday’s hearing, said. “But I think to be a really good federal judge you’ve gotta have some life experience,” Kennedy said at the hearing.

Rushing responded to Kennedy: “My experience in the federal courts of appeals and the Supreme Court are why I’m qualified,” Rushing said. “Not only the depth of that experience, but the variety. The judges on the courts of appeals get a wide variety of cases, and I have that experience in criminal law, prisoner petitions, products liability, intellectual property, commercial disputes, constitutional issues, a vast array of federal statutes.”

Rushing’s experience wasn’t the only focal point from Democrats.

A number of Democratic members quizzed Rushing about her internship and later connections to Alliance Defending Freedom, which has been designated a “hate group” by the Southern Poverty Law Center because of its anti-homosexual advocacy. Rushing has served as a speaker at ADF-sponsored events.

“In my experience with ADF, I have not witnessed anyone expressing or advocating hate,” Rushing wrote. “A number of leading Supreme Court practitioners at well-regarded national law firms work with ADF. Members of Congress, including members of this committee, have filed amicus briefs in the Supreme Court supporting ADF’s positions. I do not think members of this committee or large reputable law firms would work with a hate group. I certainly would not.”

Senate Judiciary members were scheduled Thursday morning to vote on the nomination of Rushing and more than a dozen other Trump nominees.

Judiciary Chairman Charles Grassley, R-Iowa, held over for another week a committee vote on Rushing and four other appellate court nominees. That is the usual practice following nominees’ committee hearings. Grassley rejected a request by Feinstein that those nominees appearing during the Senate’s recess be called back for a hearing before the entire committee.

The American Bar Association's Council of the Section of Legal Education could finally enact a much discussed change to its bar pass standard for law schools when it meets Feb. 22, but opposition to the measure remains strong.

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